ORDER K.C. Agrawal, J. - House No. 1206 Sethwara, Tilakdwar, Mathura, belonged to one I. P. Singh. On 31-1-1978, the petitioner purchased the said House. On 30-5-1978, Hukum Chand Tewari, who is a Member of the legislative Assembly Uttar Pradesh, wrote a letter to the District Magistrate, Mathura, for the allotment of house No. 1205. Sethwara. in his name, on the ground that although-he owned a house at Mathura and was residing therein, but since he was required to accommodate a number off persons of his constituency, he required the disputed house for his own need. On 3-6-1978 the District Magistrate made the following endorsement on the-said letter: - "speak at once." This was addressed to the District Supply Officer. On 3-6-1978 itself the District Supply Officer directed tire Rent. Control Inspector to make an enquiry. On 9-6-1978. the Rent Control Inspector submitted a report stating that one-Kesho Deo Garg was living in that house. He also mentioned that the real number of the house of I. P. Singh, which had been purchased by the petitioner, was 1206 and not 1205. As the Rent Control and Eviction Officer was not satisfied with the report, he directed R. P, Maurya, who was working in-the Rent Control Office, to make a complete enquiry and submit a fresh report. The rent control and eviction officer also wrote to Kesho Deo Garg and' Mukesh Sharma requiring them to explain their position with respect to the-aforesaid house. Kesho Deo Garg sent 3-reply stating that he had purchased' house No. 1205/2, and that he was residing therein. He disowned any connection with house No. 1206. Similar was the reply sent by Mukesh Sharma-excepting that he claimed that he was in possession of house No. 1205/1 in his own right as an owner. 2. On 22-6-1978 a fresh report was-submitted to the Rent Control and Eviction Officer stating that the house had been found locked by R. P. Maurya. He however, also mentioned that he had been informed that Suresh Chandra, the petitioner, who was the owner of the-house, lived at Bombay. On the said report dated 22-6-1978 a notice was directed to be issued to Suresh Chandra the petitioner, at his Bombay address. He however, also mentioned that he had been informed that Suresh Chandra, the petitioner, who was the owner of the-house, lived at Bombay. On the said report dated 22-6-1978 a notice was directed to be issued to Suresh Chandra the petitioner, at his Bombay address. But, without waiting for the service of the said notice on Suresh Chandra or any office report made with respect thereto, the Rent Control and Eviction Officer allotted the premises on 30-6-1978 to Hukum Chand Tewari M.L.A. Respondent 3. On 30-6-1978 itself the petitioner filed an objection stating that as the house was not vacant the allotment order made was invalid. On the said application the Rent Control and Eviction Officer remarked: "The landlord Sri Suresh -Chandra has now appeared with his counsel who has filed objection and affidavit. The copy of such objection be sent to the allottee for reply by the next date. Fix 7-7-78." 3. The petitioner also preferred a revision under Section 18 of U. P. Act XIII of 1972 against the allotment order before the District Judge. The revision was transferred to the Additional District Judge. In order to know the correct state of affairs with regard to the actual possession, the Additional District Judge appointed a Vakil Commissioner for making a spot enquiry. The Vakil Commissioner visited the house and thereafter submitted a report dated 26-6-1978. The revision was thereafter heard by the Additional District Judge and was dismissed on 23-11-1978. Against the said order, tire petitioner filed this writ petition in this court on 27-11-1978 and also obtained an order staying his dispossession from the premises. 4. Challenging the allotment order, learned counsel for the petitioner contended that the declaration of vacancy being illegal, the allotment order made on 30-6-1978 was liable to be quashed. The allotment order had been made on the basis that the premises was liable to be deemed vacant under Section 12 (1) (a). Relevant portion of the order dated 26-6-1978 declaring the vacancy is quoted below. "The report of Section I. (Rent) D/- 22-6-78 shows that accommodation No. 1866/7 (old) 1206 New Sethwara has been vacated by the landlord Sri I. P. Singh. It has been sold to Sri Suresh Chand who is having his residence and business at Bombay since the landlord had substantially removed his effects at the time of sale of the property on 31-1-1978. It has been sold to Sri Suresh Chand who is having his residence and business at Bombay since the landlord had substantially removed his effects at the time of sale of the property on 31-1-1978. There is deemed vacancy of accommodation under Section 12 (1) (a) of the Act. The accommodation at present is lying vacant but locked in possession of the new landlord who is at Bombay. Vacancy may be notified, put the case for hearing of the application for allotment on 30-6-1978 with due notice to the landlord." 5. It would be seen from the above that the vacancy was declared on the basis of Section 12 (1) (a) whereas the allotment order had been under Section 16 (1) (a). By U. P. Act XXVIII of 1976 a proviso was added to sub-section (1) of Section 16 laying down that in the case of a vacancy referred to in sub-sec. (4) of Section 12, the District Magistrate shall give an opportunity, to the landlord or the tenant, as the case may be, of showing that the said section is not attracted to his case, before making an order under cl. (a). 6. In the instant case, the notice had been issued on 23-6-1978. But as already stated above, without waiting for the service of the notice on the petitioner the vacancy was declared on 26-6-1978. The declaration of vacancy was in contravention of the proviso to sub-sec. (1) of Section 16. As a result thereof, the petitioner was deprived of the opportunity to show that the house was not vacant. The case of the petitioner taken before me was that since no vacancy occurred when the ownership of the house was transferred, Section 12 (1) (a) could not apply. It was also argued that Cl. (a) of sub-sec. (1) of Section 12 was not attracted inasmuch as the effects of the house had not been removed. 7. The learned Additional District Judge did not accept the case of the petitioner holding: - "The mere existence of some furniture of the landlord in the premises in question does not mean that he was occupying the premises and naturally it comes within the definition of vacancy because the landlord and his family members have been residing in Bombay". I am unable to subscribe to this finding of the learned Additional District Judge. For applying cl. I am unable to subscribe to this finding of the learned Additional District Judge. For applying cl. (a) of Section 12 (1) it is necessary that the effects of the house must have been removed. The word 'effects means 'goods property, belongings, 'chattels. When the learned Additional District Judge himself found that the furniture was lying in the house he could not possibly hold that the effects had been removed. Merely because some of the members of the petitioners family were living at Bombay that could not justify the finding that cl. (a) of Section 12 (1) was attracted. 8. At this place, it may also be pointed out that relying upon the report of the Vakil Commissioner, the learned Additional District Judge made a reference to the fact that a portion of this house was in occupation of G. N. Agarwal and Ravindra Kumar as tenants. It is not clear whether the Additional District Judge has maintained the finding of the declaration of vacancy on this basis. As the vacancy in the instant case had been declared on the basis of cl. (a) of Section 12 (1), the learned Additional District Judge could not shift the ground of declaration of vacancy to cl. (b) of Section 12 (1) without affording an opportunity to the petitioner. If he wanted to hold that the vacancy was liable to be declared on the basis of cl. (b) of Section 12 (1), the proper course for him was to have given an opportunity to the petitioner and to respondent No. 3 to give evidence about the same. For this finding, the learned Additional District Judge had solely relied upon the report of the Vakil Commissioner. This report could not form the basis of the judgment. The petitioner was entitled to an opportunity before this was relied upon. It, therefore, appears to me that as the declaration of vacancy was illegal and against the provisions of law, the allotment order made on 30-6-1973 is liable to be set aside. 9. Some argument was also advanced by Sri N. C. Upadhyaya, counsel for the petitioner, on the point that as respondent 3 had not made a formal application in form A the application was liable to be rejected. 9. Some argument was also advanced by Sri N. C. Upadhyaya, counsel for the petitioner, on the point that as respondent 3 had not made a formal application in form A the application was liable to be rejected. In support of this argument, counsel referred to the affidavit of Sri Girraj Prasad Singhal, Advocate, who had appeared for the petitioner, before the Rent Control and Eviction Officer. Sri Girraj Prasad Singhal has stated that when he inspected the file on 30-6-1978, he did not find the application in the prescribed form. This has been denied by respondent 3 in the counter-affidavit. I do not wish to pursue the matter further as it appears to me that for deciding the writ petition it is not necessary to do so. But I cannot help observing that the record produced before me does not establish that a formal application for allotment had been made by the petitioner. 10. Another point taken in this connection was about sub-rule (9) of R. 10 of the Rules framed under U. P. Act XIII of 1972. Counsel contended that since this was the first allotment order in respect of the house in dispute, which had never been let out before, the petitioner was entitled to one months notice. The submission is not without substance. But again, no final decision is required to be given at this stage inasmuch as the proper course appears to be to set aside the allotment order and to direct the Rent Control and Eviction Officer to decide the question of allotment afresh. The Rent Control and Eviction Officer is directed to give a notice to the petitioner. As argued by Sri R. P. Goyal, I am prepared to accept that the notice of the proceedings could be given to Sri Girraj Prasad Singhal, Advocate, who was appearing for the petitioner before the Rent Control and Eviction Officer. Sri N. C. Upadhyaya, counsel, appearing for the petitioner has no objection to this. 11. From what I have said above, it must follow that the order declaring vacancy dated 26-6-1978 the order of allotment dated 30-6-1978 as well as the order of the Additional District Judge dated 23-11-1978 are liable to be quashed, and the Rent Control and Eviction Officer be directed to decide the matter afresh. 11. From what I have said above, it must follow that the order declaring vacancy dated 26-6-1978 the order of allotment dated 30-6-1978 as well as the order of the Additional District Judge dated 23-11-1978 are liable to be quashed, and the Rent Control and Eviction Officer be directed to decide the matter afresh. The respondent No. 3 is also liable to hand over possession of the house, which he obtained in pursuance of the allotment order, to the petitioner. Since he is living in this house, I grant him one months time to vacate the premises. The proceedings for allotment would, however, not start so long as respondent 3 does not hand over the possession of the house to the petitioner. 12. In the result, the writ petitioner succeeds and is allowed with costs. The order declaring vacancy dated 26-6-1978 the order of allotment dated 30-6-1978 of the Rent Control and Eviction Officer and the order of the Additional District Judge dated 23-11-1978 are quashed. The rent control and eviction officer is directed to decide the question of allotment afresh in accordance with law. Before taking, up the proceedings, the Rent Control arid Eviction Officer may give a chance respondent 3 to make a formal application for allotment.